Marijuana Martyr

April 25, 2007

Life came unglued for Bernie Ellis on the day drug agents raided his farm like it was the fortified villa of a South American cocaine kingpin. Ellis was bush-hogging around his berry patches when two helicopters swept low over the treetops. Then, rumbling in on four-wheelers, came 10 officers of the Tennessee Marijuana Eradication Task Force. The war on drugs had arrived, literally, in Ellis’ backyard. It was a major operation to strike a righteous blow against the devil weed.

It must have been a real disappointment. Ellis, a public health epidemiologist, readily acknowledged that he was growing a small amount of medical marijuana to cope with a degenerative condition in his hips and spine. He was giving pot away to a few terminally ill people too. There were only a couple dozen plants of any size scattered around his place—enough to produce seven or eight pounds of marijuana worth about $7,000.

But for that crime—growing a little herb to ease his own pain and the agony of a few sick and dying people—Ellis was prosecuted like an ordinary drug pusher. Actually, if he had been one, he probably would have been treated less harshly. He has mounted $70,000 in debt to his lawyers, lost his livelihood and spent the past 18 months living in a Nashville halfway house. Worst of all, he risks losing his beloved Middle Tennessee farm—187 acres of rolling green hills along the Natchez Trace Parkway. Prosecutors are trying to seize the property as a drug-case forfeiture, and Ellis is fighting against the odds to save his home of nearly 40 years.

“If I were a rapist, the government couldn’t take my farm,” Ellis says. “I grew cannabis and provided it free of charge to sick people, so I run the risk of losing everything I own. That just doesn’t compute to me.”

But a strange thing has happened while the government has been trying to make an example out of Ellis. Colleagues, friends and neighbors are rallying around him—along with a whole lot of people who had never heard of him before. The balding, bespectacled 57-year-old with the amiable manner of a favorite uncle has become an improbable cause célèbre. National organizations working for the liberalization of drug laws are hailing Ellis as a folk hero and a martyr of the medical marijuana movement.

Here’s proof: supporters are throwing a “Save Bernie’s Farm” protest concert starring Jonell Mosser, the Mike Henderson Band and Delicious Blues Stew this Wednesday, April 25, at the Belcourt Theatre. Proceeds go to Ellis’ cause, and the emcee of the whole shindig is Allen St. Pierre, director of the National Organization for the Reform of Marijuana Laws (NORML).

“Bernie Ellis is a modern revolutionary!” St. Pierre proclaims, and all Ellis’ new friends are hoping the publicity surrounding his case might persuade the government to back off. At the same time, no one will mind if outrage over his plight translates into greater public support for changing the nation’s marijuana laws—which would be laughable if not for their Draconian consequences.

“Bernie is fighting his own government for his own freedom—in this case, the freedom to use cannabis as a therapeutic agent,” St. Pierre says. “There’s no reason Bernie Ellis should be in this by himself. Because of him, thousands of people are going to join NORML. They are coming out to support one of their own against a malevolent federal government.”

Across the country, there have been many victims of the government’s overzealous prosecution of medical marijuana users. In Oklahoma, Jimmy Montgomery, a paraplegic who smoked pot to relieve severe muscle spasms resulting from paralysis, was caught with 2 ounces in the pouch of his wheelchair. For that, he received a 10-year prison sentence.

In Kentucky, James Burton, a Vietnam vet suffering from hereditary glaucoma, started growing and smoking marijuana to keep from going blind. He was caught with plants and 2 pounds of raw cannabis on his 90-acre farm. A government-approved physician testified at his trial that pot was the only medicine capable of saving his vision. The feds were not moved. Burton got a year’s hard time in a maximum-security prison and lost his farm to the feds. The list goes on.

This month, New Mexico became the 12th state to permit the use of medical marijuana. But despite shelves full of scientific studies that show marijuana can provide nausea and pain relief to people with cancer, AIDS and glaucoma, among other ailments (without the detrimental side effects of narcotic painkillers), the rest of the country—including Tennessee, of course—bans the use of pot in any situation. And no matter what any state statute or medical study says (who needs science anyway?), the Bush administration maintains a Reefer Madness mentality.

Backed by the Supreme Court, which believes in state’s rights only when the justices agree with what the state is doing, the Justice Department holds that medical marijuana use remains illegal everywhere under federal law, even when state law declares it legal. The feds have prosecuted sick people for smoking doobies in states that actually permit medical marijuana.

There’s legislation in the Tennessee General Assembly to allow the use of medical marijuana in this state. But even the bill’s sponsor—Sen. Beverly Marrero, a Democrat from Memphis whose son-in-law has cancer—concedes it has no chance of passage.

“Trying to alleviate suffering seems to me to be the intelligent and logical thing to do,” Marrero says. “But legislators are very conservative people. And they only think about an issue if somebody’s calling to complain about it. Not many people are calling to discuss this issue because everybody’s afraid. We’re talking about a society in which they’ll come get you and haul you off to jail for smoking marijuana. Anybody who cares about this issue is sick and dying and they might not make it to the next election anyway. That’s the way too many legislators think.”

Considering what he’s going through, which is the kind of stuff that sends people off the deep end, Ellis isn’t showing much strain.

“I’m not ashamed of what I was doing,” he says. He has provided pot over the years to perhaps a couple dozen terminally ill people—mostly with AIDS or cancer—who were referred to him through social workers and others. As he says, “Three things happen to marijuana users. They talk too much, they laugh too much and they eat too much. I don’t see a problem with any of those things happening with sick folks.” At the time of the raid, he was giving pot to four people. Three of them died within months.

Ellis, who has a proud face and talks in a warm, disarmingly direct manner, explains that he couldn’t turn away a person in need. “I’ve grown marijuana off and on for 20 or more years,” he says. He started giving it to sick people in the late 1980s when he was helping establish the AIDS program for the state Department of Health. “I decided back then if I’m going to take the risk to grow this for my own use, I need to at least be willing to help other people if they need help.”

But he never sold any of the marijuana that he grew. In one of the story’s many ironies, that fact might have led to the raid on his farm in August 2002. A few days before, Ellis had refused to sell to some bubba who came to his place. “Have you ever known me to sell pot to anyone?” Ellis asked him. Ellis has always suspected that this stoner turned him in.

Ellis cooperated completely with drug agents during two hours of interrogation. He allowed them to search the buildings on his farm, which is 40 miles southwest of Nashville near the crossroads community of Fly. As a consultant to public health departments, Ellis had become a national leader in developing alcohol and drug abuse programs (another of his story’s ironies). At the time, he was working on a blueprint for then-New Mexico Gov. Gary Johnson on how to make medical marijuana available to patients in that state. Ellis even showed the drug agents a copy of his proposal, some of which was eventually incorporated into New Mexico’s actual plan.

The drug agents phoned around and discovered that not only was Ellis not a known criminal, he was a known good guy, highly respected in the community. At some point, much to Ellis’ surprise, the Task Force officers just scratched their heads and left.

For months, Ellis heard nothing from prosecutors. Then the Justice Department decided to make a federal case out of it—and that’s when his trouble really began. If he had been prosecuted under state law, he might never have been indicted at all. A grand jury chosen from his own community might have recognized Ellis as an upstanding citizen and rejected the government’s attempt to punish him for following a doctor’s mandate to relieve suffering. Instead, he was indicted by a federal grand jury. He pleaded guilty and suddenly faced five years in prison.

Ellis probably would have been sent to the slammer, except for what happened next. In an almost unheard-of show of support, letters poured in to the presiding jurist, U.S. District Judge William Haynes. Physicians, neighbors, professional associates and medical marijuana patients, their supporters and families, all pleaded for leniency. It turned out that over the years he had been quietly touching a lot of lives:

l Doug Anglin, Ph.D., associate director, UCLA Drug Abuse Research Center: “Your honor, I have known Bernie Ellis as a respected researcher and colleague in the field of drug abuse research, as a truly decent man dedicated to improving the lives of those around him in any way he could who became my personal friend, and as a humanitarian who supplied me with marijuana in the 1990s, before new medications...brought a halt to my wasting…in my 10th year of AIDS. Now I am approaching my 20th year of living with AIDS and have little doubt that Bernie’s assistance allowed me to reach this longevity, not only due to the demonstrable anti-nausea, anti-headache and appetite-enhancing properties of the drug but also to relief from deep depression with frequent thoughts of suicide during that physically and mentally debilitating period of my life....”

l Mrs. Ellen Humphrey: “...I am the widow of David Humphrey Jr., who was known as Junior.... I have been Mr. Ellis’ neighbor for the past 34 years. He has always been a good neighbor of ours, and has never bothered anybody.... In July 1998, my husband Junior was diagnosed with lung cancer. The nurses at the Ambulatory Care Clinic in Columbia told Junior that he should find some marijuana as soon as possible.... Junior went to Bernie Ellis to ask him if he could provide Junior with marijuana. Bernie gave Junior some marijuana, enough to last him until the end. Bernie wouldn’t take any money for the marijuana he gave Junior; he gave it to Junior for free.... When a man like Junior is in pain, he needs whatever it takes to stop hurting.... I will be happy to come to court to speak on Bernie Ellis’ behalf.... He is a good neighbor and does not deserve what is happening to him.”

l Barbara Fiebig Bennett, M.D.: “I have never met or spoken with Bernie Ellis but he has supplied me with marijuana.... (My patient) Miacha Slaughter was diagnosed with metastatic renal cancer.... At diagnosis, it was in both kidneys, her liver, lungs and spine. The drug that gave her the most relief was marijuana.... It was the only thing which relieved that unremitting nausea, the only thing that allowed her real respite. (When) she died, she was so thin I could have carried her to the hearse alone.”

l Mrs. Margie Aderhold: “I am writing you to request leniency in the sentencing of my friend, Bernard H. Ellis Jr. With Bernie’s direct assistance, I am proud to say that I am a nine-year survivor of ovarian cancer. Without Bernie’s help, I might not be here today to ask you for mercy in his case....”

There were more than 100 letters like these, and Ellis’ anxious friends filled the courtroom on sentencing day. Shrieks of delight went up as Judge Haynes decided against sending Ellis to prison and put him on four years’ probation instead, with the first 18 months to be spent in a halfway house.

“I’ve never had a client who had so much support,” says Ellis’ lawyer, Peter Strianse. “There was never any suggestion that he sold this marijuana on the street corner. The undisputed proof is that he gave it to sick and dying people to alleviate suffering, and the physicians of these sick people were aware that Bernie was providing marijuana. He really did confer some great benefit on some sick people in the final stages of their lives.”

For a moment, it was like watching the warm-and-fuzzy climax of the Christmas classic It’s a Wonderful Life, with Bernie Ellis as George Bailey. His years of selfless giving to his fellow man were now paying off, and all the people he helped had appeared in his hour of need. In real life, though, while Ellis may have avoided jail, Uncle Sam still wants his farm. If the feds win, bad old Mr. Potter is the one who will emerge triumphant—and worse, he’ll make off with George and Mary Bailey’s house.

On his website SaveBerniesFarm.com, Ellis has kept a diary of his time in the halfway house, or as he calls it, “in the belly of the beast.” He sleeps—or tries to, anyway—in a dormitory full of men who could “win, place or show in the snorers’ Olympics.” “Meals,” he says, “are barely edible—lunch sandwiches taste as if they are three days old and dinners often include pasty instant mashed potatoes as the faux vegetable. My favorite, though, is breakfast. When the house runs out of milk, they don’t go buy more. They simply serve us dry cereal with red Kool-Aid to wet it down.”

To his dismay, he found that even though his new home was “filled with people who landed in prison because of their alcohol and drug abuse problems (many of whom have come to the halfway house directly from a 90-day stay at a treatment center),” they weren’t allowed to leave to attend Alcoholics Anonymous meetings or to hold their own. “Until, that is, your favorite felon arrived,” Bernie wrote. “After six weeks of pushing, we now are allowed to hold one AA meeting a week.”

Ellis got a job at the Turnip Truck organic grocery in East Nashville, and he can go to work every day. But his movements are otherwise restricted. He was allowed only two 12-hour visits to his farm during the first year of his sentence, but now can visit once a month. His sentence ends May 10. He misses his dogs—big black mutts named Duke and Annie. His neighbors are feeding his pets and taking care of his farm while he’s away. They’re even paying his electric bills.

“I fell in love with this place the moment I set foot on it,” a smiling Ellis says, his dogs bounding toward him as he arrives at his farm on one of his visits. “It’s not the end of the world, but you can see it from here.”

It’s nothing fancy. The ramshackle farmhouse didn’t even have plumbing until a few years ago. Ellis would bathe in the spring-fed creek that runs by the house. Sometimes it was so cold that his hair would freeze before he could run back inside. But there are pretty ridges and hollows, almost all of it woodlands. There’s a graveyard dating back to the early 1800s in a patch of periwinkle, and watering holes that were used by early travelers on the Natchez Trace. Ellis bought his first piece of the property in 1973 for $6,500, and he’s been adding on to it every since. He figures the place is worth close to $1 million now.

Which may have been why the federal government went after Ellis in the first place, instead of leaving the case to state prosecutors. It takes a lot of money to fund the war on drugs. Ellis’ farm must have made a tempting target. The Drug Enforcement Administration denies this. Harry Sommers, special DEA field agent in Tennessee, says, “It’s not about wanting the money. We enforce the law. That’s what we do. If you grow marijuana on your land, then your land is forfeitable under the law.”

Ellis’ lawyers contend the government doesn’t enjoy carte blanche power to seize the farm. In court papers, they argue that it would violate the Constitution’s prohibition against excessive fines because it would be “grossly disproportional” to Ellis’ crime: “Not only did the underlying criminal case involve a nonviolent crime, but it also involved no victims and, in fact, demonstrated that Mr. Ellis acted to actually benefit other individuals, hoping to alleviate needless suffering at the end of those individuals’ lives.”

Ellis is negotiating with prosecutors. But if there’s no settlement, the fate of his farm could be decided by a jury. In a couple of weeks, his sentence in the halfway house completed, he’ll go back to his home to await the outcome of his case.

“I don’t want to appear to be obstinate,” Ellis says, “but there’s a point at which you say enough is enough. They can’t have my home. My community has rallied around me. I can’t honestly imagine how I’m ever going to repay some of these people for their kindness and support. What they’ve said over and over again is, ‘You’ve proven your worth to us and we don’t want to lose you.’ ”

Does he regret growing marijuana? “There are a number of things I regret in this experience,” Bernie Ellis says. “I regret being naive to the process. But I do not regret using marijuana, and I do not regret helping people.”